While monitoring the servers, it was brought to our attention that your domain, leestranahan.com, was undergoing a brute force attack. The purpose of the attack was meant to gain access to your wp-admin area, allowing an authorized person to have complete control of your site.

The email lists URLs of specific posts that have been attacked.

Many of them are related to Brett Kimberlin.

P.S. There will be a major hearing in Aaron Walker’s case against Brett Kimberlin on Tuesday. It is worth noting that Kimberlin has pled the Fifth with respect to Walker’s discovery requests. One of those requests relates to Kimberlin’s knowledge about SWATting. Ted Frank notes on Twitter that, in the civil context, the court is entitled to draw an adverse inference from a litigant’s invocation of the Fifth (something a prosecutor could never do in a criminal trial, of course).

All of this makes for a potentially very interesting day on Tuesday. And raises the question: why does Brett Kimberlin think it might incriminate him to answer a question about what he knows about SWATting?

I have not seen Kimberlin’s motion. But judging from the “response” he might win this one. Or, again, not. It will depend on the state of the judge’s digestion. This is the kind of case no judge wants.

Let’s be honest. They’re both blowing smoke.

There is no Fifth Amendment privilege in civil cases, BTW. A request to admit or deny is deemed admitted unless denied within the statutory period. If the request is improper, meant to harass and not leading to the discovery of relevant or material evidence which will not support any allegation in the complaint, a motion for a protective order should be brought.* However, even if there is default, and the “admission” occurs, the court need not give it any weight.

I wonder, though, did Aaron mingle up his request to admit or deny with his oral interrogatories?

Kevin-
As far as I know, the use of the 5th Amendment is limited to information that has the possibility to incriminate you…meaning that generalized application of the amendment is not allowed. If the judge has reason to believe you’re just being difficult, he could direct you to answer and hold you in contempt.

And, to continue my previous thought, this is why a civil court, with its more permissible evidentiary standards, is able to hold pleading the 5th against a litigant. To put it simply, if the litigant believes that a piece of information will incriminate them, why shouldn’t the court?

Lee also says some very old posts related to weinergate were targeted; that the posts specifically mention someone NR recently attacked. I’m having trouble excluding possibilities, wonder who Lee means.

And a reminder — bad things happen in real life to people who oppose the Kimberline group. Everybody should be careful and prayerful.

Especially you, Pattterico.

Hey lawyers, wouldn’t you neccessarily need to defend yourself in a civil matter? So, if you go, but pleade the fifth, aren’t you just telling the judge to toss the book at you? But really, if you can’t stand up for yourself in a civil suit, because it might incrinate you criminally, you’ve pretty much screwed up.

It’s a little more complicated than what Mr. Bellmore said. You are not authorized to simply say you intend to plead the Fifth and avoid all questioning; the other side is allowed to ask you any questions it wants, and you must invoke the privilege separately with respect to each question. But the purpose of this is to ensure that the privilege is properly invoked. Unless the response to “What is your name” implicates the privilege (and I suppose we could come up with hypotheticals in which it did), you are required to respond.

Why does Brett Kimberlin think it might incriminate him to answer a question about what he knows about SWATting?

A. Because Kimberlin knows nothing at all about SWATting and refuses to insult the court by wasting time on irrelevant issues.

B. Because although Kimberlin is innocent of any direct involvement in SWATting, he’s privy to detailed knowledge of recent SWATting episodes and is restrained from divulging such information by the attorney-client privilege.

C. Because Kimberlin is guilty of conspiring to SWAT Walker and others and has invoked the 5th to avoid providing evidence of his guilt.

D. Because Kimberlin hates Walker’s guts and he’ll use any trick or maneuver available to thwart Walker’s attempts to obtain relief from the legal system Kimberlin regards as his exclusive weapon for punishing his detractors.

I think its obvious that Kimberlin is perfectly willing to lie in pleadings to the court.

So I don’t think that Kimberlin is invoking the Fifth in response to discovery to avoid an incriminating answer. He thinks its a tactic to avoid answering at all and delay. He thinks the court would be sympathetic to him.

Thanks for the info on the limitations of the 5th in civil proceedings. I didn’t know that, but it makes sense.

I thought part of the rational for the 5th was to prevent the government from beating a “confession” out of someone. In one way, we want people to say things that incriminate themselves so innocent or guilt can be determined, but we don’t want the idea that “confessions” can be made by force.

The Fifth has evolved, MD. To make a long story short, it was rightfully argued in Miranda, that 1) it only applied to the federal government* and 2) that it only applied to the court to call the defendant on the stand. Miranda changed the standard to coercion from any governmental source, any time, any place. There is an an exigent circumstances exception, for example, asking an armed robber “Where’s the gun?”, but that’s about it.

*The FBI was giving the warning, without court action, thirty years before Miranda. It helped the court make the decision it did.

And it’s important to remember that it is only an evidentiary rule. It is the court which is not allowed to admit the compelled confession. The police can beat me for the location of my still, and destroy it, they just cannot talk about it at my trial for bootlegging.

I suppose I, or a prosecutor, could sue them for violation of my civil rights.

We should do away with all this Constitution stuff. We should be governed by an oligarchy of wise judges, public school teachers, journalists, lawyers, Hostess bakers, and community organizers. They know what’s best for us.

I am very interested in the decision on Tuesday. I don’t know Virginia civil rules of procedure. But, generally, the sufficiency of the complaint to state a cause of action upon which relief can be granted is always an issue, regardless whether the defendant has pleaded over, or even if trial has occured. Yes, if the court has ruled on the sufficiency, it becomes law of the case, but until it has the defendant can raise it up to and including entry of judgment. Kimberlin might succeed in having Aaron’s complaint, or some counts, stricken.

that 1) it only applied to the federal government* and 2) that it only applied to the court to call the defendant on the stand. Miranda changed the standard to coercion from any governmental source, any time, any place. There is an an exigent circumstances exception, for example, asking an armed robber “Where’s the gun?”, but that’s about it.

*The FBI was giving the warning, without court action, thirty years before Miranda. It helped the court make the decision it did.

It’s important, leave to refile, because it is an unappealable interlocutory order if you have leave to refile, but if you don’t within the (usually) 30 days it becomes with prejudice, and you can neither appeal nor refile.

With prejudice means anything that was litigated or could have been litigated. Transaction(s).

If Aaron did not get an explicit order for leave to file an amended complaint, he should go back with a Motion for Reconsideration and ask for one, right away. Even if it is denied, it will give him the right to appeal, as well as a little additional time within which to fashion his appelate brief.

And will Kimberlin report me for giving legal advice although not licensed in Virginia?

Federal courts make my head spin, and state courts are adopting their rules, so to be safe, go with the 1004(b) rule that any dismissal that is not explicitly stated to be without prejudice is with prejudice.

Not at all surprised by the outcome. It *was* a badly drafted complaint which failed to specify compensatory damages. If I’m not mistaken, Aaron wrote it before he got legal representation: another example of why one should never act as his own lawyer.

My father did have a still. It’s legal and common in rural Greece. They make tsipouro (grappa) from strictly grape squeezings, and raki (arak) from other sweet fruit. Up north they might flavor them with anise (ouzo).

I thought only the federal pleading lacks the compesnatory damages section.

The state complaint didn’t assert compensatory damages either, and I suspect that is part of the reason why it was dismissed today. That, and the documents showing that Aaron wasn’t fired because of Kimberlin.

I still believe that it’s a case no judge wants to hear. “Take it outside to the internet.”

It is, however, a judge’s job to hear cases he does not want to hear. The plaintiff must help. He has the burden from the pleading, to the initial evidence, to the proof. In many ways, it is a Sissyphian task.

Taking your position requires one to accept discovery as 100% accurate with no verification.

Well, I suppose Aaron’s attorney could have argued today that the email that his side produced was a forgery. But I think there’s a good reason why he didn’t.

Contemporary documentary evidence is ridiculously strong, especially when it is an admission against interest. And sure, I suppose Aaron’s employer could have been deposed, but it’s not like they were going to say anything different than the lawyer’s email citing all the reasons Aaron was fired, none of which placed Kimberlin as the direct cause. Of course, being Virginia — an at-will employment state — they don’t have to give a reason at all to fire someone.

Is every piece of discovery automatically assumed 100% true in your world?

That is the bizarre position Kman is taking.

I am pretty sure that Kman is an attorney, too.

It’s enough to strike down (on a motion for summary judgment basis)

Sorry, but the opinions of one person who already had a problem with Aaron are not proof.

There should have been testimony from those who say that they were scared of Brett Kimberlin showing up. The company should have been asked why they did more than just fire Aaron (I can’t go into further detail). In fact, I am absolutely certain that after a full examination, this document would be shown to be wrong.

What possible testimony could negate what that document said?

Good question. The court should have given Aaron a chance to answer that. The author of that document could have been challenged on its points. I think rather easily.

Is it not abundantly clear that this issue deserved a forum where both sides could present their evidence, testimony, challenges to that testimony, and receive a ruling at that point?

Not Kman’s “how could this one opinion be wrong? I am not going to try to think of the million ways it could be, so it’s not wrong and Aaron should always lose.”

And if Aaron is right, we have an answer to how he was damaged, don’t we?

So it is not hard to see why I’m frustrated that a cherry picked discovery, leaked against court order, vs a refusal to comply with discovery, discussed by internet commenters, is as close to a hearing as we got.

This isn’t justice. And I think the wrong lessons have been learned. People like Neal Rauhauser have their way of resolving conflicts, and people like Aaron have their way, and apparently Judge Potter thinks Aaron’s way is the wrong one.

That lawyer was apparently very concerned about the public relations. Are you pretending you don’t realize that?

Of course he was, and of course I realize that. But even that goes to why Aaron was fired: Aaron he created a potential PR problem for his employer — because of the Muhammad site, because of his dealing with Kimberlin, etc.

But the lawyer is not the employer either. What if there is evidence that shows a huge issue this lawyer didn’t even mention that is impossible to pretend the employer wasn’t aware of, especially if their reaction was more than merely terminating Aaron? Sounds like we needed some testimony.

And let’s not pretend you have even attempted to answer Daleyrocks’s question.

“If one of your claims is that someone was the reason that you got fired, then being an at-will state is very relevant.”

Kman – Read again. It is not relevant to the accuracy of the discovery. The spokesperson writing the email relied on what he was told by others, yet you claim it was sufficiently truthful for a judge to dismiss the case.

How do you come by such knowledge without independent verification of the statements or how does a judge arrive at a conclusion with respect to the truthfulness of the statements? Your approach is to always assume 100% accuracy even though employer motivations may be different.

But even if that is true, Aaron was culpable, in the eyes of his employer, for getting himself mixed up with Kimberlin

whooooooaa

This is a legal argument, Kman?

Really?

Wow. So if a thug is frustrated with your behavior and demands your wife divorce you, or else they will key her car, and as a result she exercises her right to divorce you, it’s your fault for frustrating the thug? That’s idiotic.

Sounds to me like there is no level of evidence that could possibly get you to hold Kimberlin accountable, and no level of evidence that would keep Aaron from being at fault.

And if Aaron is right, we have an answer to how he was damaged, don’t we?

No. That’s the problem with the complaint.

Just because Kimberlin is a bad guy doesn’t mean Aaron actually suffered damage from him.

Let’s take you calling me a “troll” as an example. Guess what? You’re guilty. But do I suffer damage? No. So I can’t raise a defamation complaint against you, even if the court accepts all my allegation as true. That alone takes out most of Aaron’s claims.

The only one outside that realm is the claim that Kimberlin (et al) caused Aaron to be fired. But even then, Aaron’s allegations just aren’t strong enough to show that — even if you believe them — Kimberlin was legally responsible. Read the complaint.

And THEN when you get to the emails from the attorney explaining to Aaron why he was fired, well, it’s kind of a no-brainer why this was thrown out.

I was fired once (well, more times than that!) and was told verbally the reason was A, in writing that it was B, the company told the unemployment office in writing that I had not been fired but had quit, and then in writing, no, not quit, C, and when we went to arbitration D, and more lawyers showed up and then claimed E, and then none of them came back after lunch. The arbitrator told me I won, and that he suspected whatever the reason really was, it was probably none of those presented — and it likely had little to do with me or my work.

So if a thug is frustrated with your behavior and demands your wife divorce you, or else they will key her car, and as a result she exercises her right to divorce you, it’s your fault for frustrating the thug? That’s idiotic.

I’m saying that in the

If you want to take the position that the employer’s reason for firing Aaron is “idiotic”, go ahead. But that STILL doesn’t make it Kimberlin’s fault.

But the lawyer is not the employer either.

He’s an agent of the employer, acting within the scope of his agency. Which is the same thing.

So, Kimberlin shares what Backer submitted, despite having asked for discovery to be sealed, and the court does nothing. Kimberlin refuses the court’s order for discovery yet Kimberlin uses the discovery to get the case dismissed.

This is upside down.

THEN when you get to the emails from the attorney explaining to Aaron why he was fired,

Not only is Kman trollishly ignoring that the claims in that email are not proven accurate, he is ignoring that Aaron’s employer did more than fire Aaron, and thus the email is provably inadequate as an explanation.

But no fact would change Kman’s mind. He has a long standing trend of simply ignoring anything that shows he’s wrong, and not answering an argument that shows he’s wrong.

I think we all realize that Kman’s basis, an illegally shared email, is sickeningly weak evidence. Even Kman.

If you want to take the position that the employer’s reason for firing Aaron is “idiotic”, go ahead.

That isn’t what I said. I said that blaming a victim for thuggery is idiotic.

I don’t necessarily hold it against Aaron’s employer for responding to the fact its employees were afraid of a domestic terrorist (and that is a fact, Kman, and despite all your effort to ignore it, these are real people).

He’s an agent of the employer, acting within the scope of his agency.

That was definitely not demonstrated by the email. But you don’t need it to be. You just need Kimberlin to be right, so you will simply assert whatever you need to in order to make him right.

That isn’t what I said. I said that blaming a victim for thuggery is idiotic.

Well, fine, whatever. I’m just thinking about it legally.

Obviously, in the eyes of his employer, Aaron was not a “victim” in this. Reasonable minds can differ on this, I suppose, but the point is that, as his employer, they could look at it any way they wanted. And they didn’t see Kimberlin to blame so much as Aaron was for exposing the company to public relations risk.

Well, Aaron has to allege it. He just asks for $2 million dollars and then gives alternate legal theories why he deserves it. But nowhere is it clear that $2 million is his actual damages. It’s just a number from out of his butt.

I mean, if Aaron had $2 million in psychiatric bills because of the “intentional infliction of emotional distress” caused by Kimberlin, okay. But he doesn’t plead that.

Why would Aaron’s employer (through its agent) lie in a private email to Aaron about the reason Aaron was fired?

To establish an alibi. I have personal experience with that. I wasn’t the one fired, by the way.

An Admiral relieved my C.O. The Admiral felt compelled to send a letter to every member of the command explaining the four reasons why he took that action. When I read it I realized, “I have got to keep this for my records.” I knew for a fact none of those reasons were valid. The letter concluded with comments about how every member of the command had his full confidence and he held our former skipper solely responsible for the four major deficiencies that had forced him to fire our skipper.

Then our new skipper showed up. And he called an All Officer’s Meeting and just laid down the law. Because on his way out to take command he had been briefed. By the same Admiral. About what exactly was wrong with that command.

As I knew, the Admiral had lied in that letter to us. As the new skipper found out, the Admiral had lied to him in his briefing about the deficiencies of his new command.

Two different stories. Neither true. That Admiral never told the truth to anyone. But he had his story in writing and that was the only important thing.

I mean, the only “truth” as to the motive of Aaron’s firing lies within the employer — the one who did the firing.

Comment by Kman (5576bf) — 12/4/2012 @ 1:37 pm

I suspect with a little digging the truth as opposed to the “truth” might have been discovered. I showed my new skipper that letter (glad I kept it). That was not, as I had figured, what he had been told.

But as nk points out it’s all water under the bridge now. What’s done is done. The issue is what can Aaron do now?

Well, maybe he could see his old employer. Ask for help in securing employment and recommendations. If they were or are dishonest, sue them for defamation.

They will not be as dishonest as Kimberlin, so initiate discovery, get them under oath and find out the real reason he was fired and other things done.

At the start tell them how it is going to play out and if they tell him everything he needs to know now and help him he’ll settle very quickly for very little or nothing. But make sure it is the truth.

Then, let’s say, somebody threatened the company with loss of business, proceed further, although you could hit a dead end. If someone says they were afraid of something coming from unknown people, make them prove that they had a real fear. And it is not a cover for something else more specific and somewhat different.

He may get close to having a real case against Kimberlin or somebody else. (is the problem that he needs discovery to be able to state a case?)

He may also ask for people to supply information, and give them a way to do so. Maybe at some point somebody will come out of the woodwork to settle.